Likewise, it is established that to exercise real estate brokerage, one must be duly authorized and registered in the corresponding registration in the respective College that also creates said law, as occurs in all Argentine provinces that have regulated the activity of the Broker through their laws , delegating to the schools the control of enrollment and disciplinary power, among other provisions and obligations.
It is interesting to note that according to law 14,085, in Chapter III of the prohibitions, art. 53 subsection J says: “It is forbidden to establish companies with people disqualified for professional practice” and in subsection l it says: “It is forbidden to act under another name that does not correspond to the name and surname of the members, except in the cases of companies legally constituted as a whole in accordance with the provisions of National Law 20,266 and its amendments, where it will be recorded in every publication, the name, surname and professional data of at least one of the members of the group in activity ”.
It is clear that real estate brokers can only partner with other real estate brokers and not with a brand, a franchise or a non-registered individual.
Professions are not franchised
After a brief legal explanation that governs our profession, we must add that “Professions are not franchised and cannot be delegated” (auctioneers, real estate brokers, pharmacists, doctors, notaries, biochemists, among others).
Now, going to what is happening today in our province of Buenos Aires and the rest of the country, in practice, all those auctioneers / real estate brokers who are in charge of a “real estate franchise” (whatever it is called), transgress the above mentioned laws (forbidden to associate with someone who is not auctioneer / broker), being liable to disciplinary sanctions through the Disciplinary Court of the departmental / judicial College to which their registration belongs.
The defendant may appeal the measure issued by his Departmental College to the College of Auctioneers and Public Brokers of the province of Buenos Aires, and if in that instance his sanction is ratified, It is left to the denounced the judicial recursive route in Administrative Litigation and follow it up to the Supreme Court in its two instances.
An exemplary ruling
The recent ruling issued by the General Inspection of Jusiticia (IGI) of CABA ordering the dissolution of the firm Remax Argentina S.R.L., also claiming that he will not be able to continue in the country and, consequently, he must begin his judicial process of dissolution and liquidation. The IGJ alleged that Remax Argentina SRL was created by two human persons to have the main franchise of Re / Max International and, from there, sub-franchise it to real estate agents and brokers.
The IGJ understands that the US entity “Indirectly exercises real estate brokerage avoiding local legislation” which imperatively establishes requirements for this activity and benefits through Remax Argentina SRL by participating in the fees of the real estate transactions brokered by the numerous franchisees. The exteriorization of the “Remax” brand by these sub-franchises generates in their favor the false appearance of belonging to an economic group, which will benefit them based on misleading advertising, which in turn benefits the franchisor, allowing them to participate. indirectly from the surgery, which it could not carry out on its own, directly. In addition, it highlights that the human persons, directors of the SRL are not real estate agents, nor is the purpose of Remax Argentina SRL to carry out this activity.
Real estate agents
Another chapter to deal with and which is as delicate as the one mentioned above, is the subject of the so-called “Real estate agents” or sellers of real estate agencies that work under the franchise method.
These “Real estate agents”, managed by registered real estate brokers, who are suspected of covering up with their name and registration the actions of agents who are unregistered people who practice the profession.
Crime framed in the Penal Code in its art. 247, which says: “It will be punished with ………… whoever performs acts of a profession for which a special qualification is required, without possessing a title or the corresponding authorization”, where titles and honors that do not correspond to him are usurpated, on behalf of the real estate broker authorizing the office.
Today we analyze the form of work carried out by these “Real estate agents” and those enrolled that enable them, within the framework of the franchises in general that currently exist.
Thus, it is discovered that in each of the offices of the aforementioned registered brokers, many people called “Real estate agents” who carry out brokerage acts.
These “agents” are not employees in a dependency relationship with said registered brokers, but act independently, to the point of being registered as monotaxers and issue invoices for their performance.
An important clarification should be made on this issue: all the dependents / employees of the registered real estate brokers are governed by the current labor regime through an employment contract, which determines that the employer is responsible for the performance of the dependent, who you must follow his directives.
The antagonistic and exclusive meaning of the terms “dependence” and “independence” clearly highlights the relevance of what has been said.
That is why it is so significant to bear in mind that the so-called “Agents”, they act independently, protected by the registered, exercising real acts of real estate brokerage in their own office (valuing, signing sales authorizations, advising, participating in the sales ticket and accompanying the parties to the deed, charging fees among other actions,) all these acts are non-delegable functions of the registered broker, whoever fulfills these functions without being (agent), violates art. 247 of the aforementioned CP.
As a conclusion of the data and objective facts reported, it is clarified that the so-called “Agents” They do not have the right to charge fees for the rule of art. 33 of national law 20,266, which says: “those unregistered persons who carry out the brokerage illegally have no right to collect any commission or remuneration.”
It is our responsibility to transmit all this information to the community and to the franchises (who seem not to know them), so that there is no doubt about the legitimate actions carried out by the Professional Associations, being an indisputable maxim, which they have the obligation to comply with. and enforce the law and that this does not mean harassing anyone who respects the rule of law that governs our country.
Vice President Real Estate Chamber Buenos Aires Province